Donald B. Tobin (University of Maryland Francis King Carey School of Law) and Alex Tobin (Independent), Living Constitutionalism, Originalism, and the Sixteenth Amendment, 77 Ala. L. Rev. 511 (2026) on SSRN. Here is the abstract:
The Supreme Court’s embrace of living constitutionalism in tax jurisprudence may allow it to avoid building the tax base on constitutional quicksand. In Moore v. United States, the Court eschewed creating a structural calamity in tax jurisprudence and applied a pragmatic type of living constitutionalism. While the Court originally granted certiorari in Moore to address the question whether “the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states,” in the opinion that followed, the majority explicitly declined to answer this question, finding instead that there was realization in this case. This technical tax case could have dramatically altered the tax code, but instead uplifted living constitutionalism as a method for interpreting the Constitution. Whether the Court will expand on its use of living constitutionalism—let alone recognize Moore as containing living constitutionalist rationale—remains to be seen, but Moore provides a productive pathway forward for constitutional interpretation. We argue that Moore is another example that originalism’s claim to objectivity has failed, and pragmatic living constitutionalism should be embraced by the Court as its paramount constitutional interpretive method. A move away from originalism and towards living constitutionalism is especially important in tax jurisprudence, where the statutory structure of the tax code is intricately intertwined to create a stable, coherent ecosystem. Part I of this article explains the tax issues at play in Moore and why a technical international tax provision almost led to a radical change in the tax law. Part II reviews the various forms of living constitutionalism and originalism to provide the interpretive tools necessary to understand Moore. Part III examines the majority opinion and explains why the majority approach contains important elements of living constitutionalism. Part IV examines the flaws of the originalist approach and explains why the Court should apply a type of pragmatic living constitutionalism when analyzing the constitutionality of tax provisions.
For a very different take, see Thomas R. Lee, Lawrence B. Solum, James C. Phillips & Jesse A. Egbert, Corpus Linguistics and the Original Public Meaning of the Sixteenth Amendment, 73 Duke L.J. Online 159 (2024). The authors do not respond to the corpus linguistics evidence, which strongly suggests that the public understanding of “income” did, in fact, include a realization requirement.
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Lawrence Solum